Introduction
The High Court of Australia sitting as the Court of Disputed Returns in Re Culleton [No 2] [2017] HCA 4 has found that, by reason of s 44(ii) of the Commonwealth Constitution, Senator Culleton’s conviction for larceny disqualified him from being elected as a senator at the 2016 election notwithstanding that the conviction was later annulled.
Section 44(ii)
Section 44(ii) of the Constitution relevantly provides:
“Any person who:
…
(ii) … has been convicted and is under sentence, or subject to be sentenced, for any offence punishable under the law of the Commonwealth or of a State by imprisonment for one year or longer …
shall be incapable of being chosen or of sitting as a senator …”.
Background
Prior to the 2016 election, Senator Culleton had been convicted, in his absence, in the Local Court of New South Wales, of the offence of larceny. He had then been liable to be sentenced to imprisonment for a maximum term of two years. On the same day that he was convicted, the Local Court issued a warrant for his arrest in order to have him brought before it for sentencing. Subsequently, Senator Culleton was nominated as a candidate for the 2016 election and, after the election, was noted as elected as a senator for Western Australia. When the warrant issued for his arrest was executed, the Local Court granted an annulment of the conviction under the Crimes (Appeal and Review) Act 2001 (NSW), dealt with the matter afresh, and found Senator Culleton guilty of the offence on his own plea, but dismissed the charge without proceeding to conviction. Senator Culleton was ordered to pay monetary compensation to the complainant.
Court’s decision
The matter was dealt with by a Full Court (Kiefel, Bell, Gageler, Keane and Nettle JJ). The decision was that, by reason of s 44(ii) of the Constitution, there was a vacancy in the representation of Western Australia in the Senate for the place for which Senator Culleton was returned and that the vacancy should be filled by a special count of the ballot papers, a single Justice making any directions necessary to give effect to the conduct of the special count.
The plurality
The key points made by the plurality (Kiefel, Bell, Gageler and Keane JJ) included the following. References to the cases have been omitted.
- The words “shall be incapable of being chosen” in s 44 of the Constitution referred to the process of being chosen, a process which operated from the date of nominations, being the date on which the electoral process began, until the return of the writs for the election, being the time at which the electoral process was complete (at [13]).
- The words “is under sentence, or subject to be sentenced” in s 44(ii) made it clear that the framers of the Constitution were concerned to ensure that not only should a person who had already been sentenced to a term of imprisonment of one year or longer be disqualified from being chosen or from sitting as a senator; so too should a person who was able to be so sentenced. The circumstance sought to be guarded against was that such a person might not be able to sit and should for that reason not be able to be chosen (at [22]).
- The relevant provisions of the Crimes (Appeal and Review) Act 2001 (NSW) indicated that a conviction was annulled only for the future and did not purport to operate retroactively to deny legal effect to a conviction from the time that it was recorded. Accordingly, at the date of the 2016 election, the conviction recorded against Senator Culleton was legally in effect and the later annulment did not alter this position because it did not purport retrospectively to treat the conviction as if it had never occurred (at [28]-[29]).
- In light of this finding in relation to the effect of the annulment, it was not necessary to deal with the question as to whether the mere fact of the conviction was sufficient to engage the disqualifying effect of s 44(ii) even if the conviction were to be nullified retrospectively (at [14]).
- Although s 25(1)(a) of the Crimes (Sentencing Procedure) Act 1999 (NSW) prohibited the Local Court from imposing a sentence of imprisonment upon “an absent offender”, Senator Culleton was nevertheless “subject to be sentenced … for any offence punishable … by imprisonment for one year or longer ” at the time of the 2016 election. While he was not liable to be sentenced to imprisonment in his absence immediately upon the conviction being recorded, once the warrant issued on that day for his arrest, the processes of the law pursuant to which he could lawfully be sentenced to imprisonment were set in motion. If those processes took their course, he would be present when sentenced, and so could lawfully be sentenced to a term of imprisonment without offending s 25(1)(a) of the Crimes (Sentencing Procedure) Act (at [36]).
Accordingly, the plurality concluded at [4] that, both as a matter of fact and as a matter of law, Senator Culleton was a person who had been convicted and was subject to be sentenced for an offence punishable by imprisonment for one year or longer at the date of the 2016 election and that the subsequent annulment of the conviction had no effect on that state of affairs. Therefore, by reason of s 44(ii) of the Constitution, Senator Culleton was “incapable of being chosen” as a senator and there was a vacancy in the representation of Western Australia in the Senate for which Senator Culleton was returned.
Nettle J
Nettle J agreed with the plurality in the result but some of His Honour’s reasons differed from those of the plurality. The key points made by his Honour included the following:
- The better view was that s 44(ii) of the Constitution was directed to a conviction in fact regardless of whether it was subsequently annulled (at [57]).
- In any event, a conviction that was susceptible to annulment under the Crimes (Appeal and Review) Act 2001 (NSW) continued to have effect up to the date of annulment and so remained determinative of the convicted person’s convict status in relation to events occurring up to that point. Up to the point of its annulment, Senator Culleton’s conviction was voidable, not void and so remained a valid conviction determinative of his convict status for the purposes of s 44(ii). It followed that, at the time of his nomination, he was not capable of being chosen as a senator, notwithstanding the later annulment of his conviction (at [62]-[63]).
- Senator Culleton was “subject to be sentenced” at the date of nomination. Plainly, the purpose of s 44(ii) was to disqualify a person convicted of any offence for which the maximum penalty was a term of imprisonment of one year or more if the person either had been sentenced and was still to complete the sentence, and so was “under sentence”, or remained to be sentenced, and so was “subject to be sentenced” (at [66]).
